Last week’s Constitutional Court ruling decriminalising consensual sexual relationships between teens was met with moralising outrage across the country. Sensationalist media fanned the flames of indignation by failing to contextualise the law’s effect on teen sexual relations – including rape.

Under the impugned sections 15 and 16 of the Sexual Offences Act (SOA) teenage rape survivors, especially girls, run the risk of being criminally charged for being raped.

On October 3 the Constitutional Court finally brought an end to litigation brought by children’s rights organisations against sections 15 and 16. In a unanimous judgment authored by Justice Sisi Khampepe, the court found that the sections served to deny teens of their right to privacy and dignity.

The impugned sections of the SOA sought to prohibit 12 to 15-year-old children from engaging in any voluntary and consensual sexual conduct with one another. The prohibited conduct includes anything from holding hands through to penetrative sex. In fact, all forms of contact between children of 12 to 15 years old that an adult may merely consider ‘sexual’ are prohibited.

The backward and grave consequences of the struck sections aren’t merely hypothetical, and were illustrated after the alleged gang rape of a young girl, aged 15, by two teenage boys, aged 14 and 16, at Jules High School in Johannesburg in 2010. The girl was allegedly drugged and raped by the two boys. The incident was recorded on witnessing children’s cell phones, making it impossible to dispute that sexual intercourse had occurred between the three teens. But the National Prosecuting Authority (NPA) withdrew the rape charge for a reported ‘lack of evidence’, only to charge all three children with statutory rape – based on the now impugned sections 15 and 16 of the SOA.

The NPA’s decision to drop the rape charges against the girl’s attackers only to pursue criminal charges against the girl herself had many South Africans recoil in horror at the apparent miscarriage of justice, and questions were raised about the problems with these sections of the SOA.

Now that the Constitutional Court has ruled against this very section, many South Africans are calling for it to be reinstated as a result of the distorted reportage from many members of the South African media and headlines like “Judge okays child sex”. (The Pretoria News was forced to retract this headline after it was accused of sensationalism in its coverage of North Gauteng High Court judge Pierre Rabie’s ruling against sections 15 and 16 earlier this year.) In fact, the vast majority of media coverage have opted to selectively and sensationally focus on the ruling as giving 12-year-old kids the okay to get naked.

As a result of the warped logic of sections 15 and 16, as well as other provisions that support it, teenage girl survivors of rape stand the very real risk of being penalised as perpetrators for being raped. Attorney for the Women’s Legal Centre Sanya Bornman rightly pointed out that such legislation will have a disastrous impact on the provision of services for young teen rape survivors – an ironic and unintended consequence of an otherwise progressive law that seeks to enable and support rape survivors’ access to services as well as protect them from victimisation by police, healthcare workers and the justice system.

As a result of already poor sex education and access to contraceptives, South Africa sees an increase in the number of teenage pregnancy. And since girls bear the physical marker for sex both in terms of pregnancy and a higher chance of contracting an STD, girl teens are also more likely to be prosecuted under this legislation, according to Bornman. “Clearly section 15 and 16 affect girls disproportionately to boys, and for that reason alone the sections violate all girls’ constitutional right to equality before the law,” she added.

In addition, adults who witness or are made aware of consensual ‘sexual’ acts between teens are obligated to report the ‘crime’ to authorities. If an adult is aware of hand-holding, cuddling or sex occurring between young teens and does not immediately report the case to the police he or she is liable for a fine or prison sentence not exceeding five years. The same obligation to report applies to parents: under sections 15 and 16, were your own teenage child to admit to you that he or she had merely kissed another child their age, you are legally bound to report this to the police immediately lest you become a criminal yourself.

This has the potential of putting immense strain on teachers and families, as they are practically barred from having open and honest discussions about responsible sex and sexual autonomy with their kids between 12 and 15 years old.

The criminalisation of consensual sex further hinders young teens from accessing medical services medical needed to treat and prevent sexually transmitted diseases and pregnancy, as medical staff who deal with teens that present with these conditions are obligated to report them to the police. This has the potential of both discouraging young teens from disclosing their condition, as well as dissuading medical professionals from asking the right questions with regards to these teen’s sexual engagements.

Considering the disastrous implications of these sections of the SOA, South Africans should welcome the Constitutional Court’s ruling. It is a crucial step towards an open conversation with teens about sex and what constitutes responsible, safe and healthy sexual behaviour. And where teens are having sex, teens will have access to healthcare (including contraceptives), counselling and sex education without their service providers – or even their parents – running the risk of arrest. The ruling also serves to protect the rights to privacy, dignity and choice for these teens’ – including the rape survivors among them.

You can read more on sections 15 and 16 of the Sexual Offences Act, here.

“… the SOA sought to prohibit 12 to 15-year-old children from engaging in any voluntary and consensual sexual conduct with one another”

I don’t think rape can be considered as ‘voluntary and consensual’

The girl from Jules subsequently admitted that it was voluntary, that she was not drugged and that she was fully behind (and ‘enjoyed’) making their ‘porn movie’. The fact that they all received (much needed!) counselling afterwards might not have happened if there was no law involved.

I do feel that the baby was thrown out with the bath water on this. Yes, the law – as it stood – was ridiculous but some form of control is needed. 12 year old children should not have rights that they are simply too young to carry the responsibility for. There is a very good reason why we don’t let 12 year olds vote, drive or sign contracts. It is for the same reason that parents don’t think 12 year olds have a right to ‘privacy’. Their brains have not physically developed enough to make good choices – hence the universe gave them adults to protect them from themselves

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Michelle Solomon is a sexual violence and rape survivor rights activist in the Eastern Cape, South Africa. She works towards realising rape survivors' rights to dignity, privacy, safety and justice in a country struggling towards an understanding of sexual and gender-based violence.
Follow her on Twitter at @mishsolomon or at her website http://journoactivist.com/